United States v. Palivos, Peter ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
Nos. 05-4258 & 05-4329
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
PETER PALIVOS and LOUIS MARIN,
Defendants-Appellants.
____________
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 00 CR 1065—Joan Humphrey Lefkow, Judge.
____________
ARGUED JANUARY 17, 2007—DECIDED APRIL 10, 2007
____________
Before FLAUM, KANNE, and EVANS, Circuit Judges.
EVANS, Circuit Judge. Peter Palivos, an attorney, and
Louis Marin, a loan broker, were indicted, along with
a number of other defendants, for their involvement in
a shady 1996 real estate deal. Both were convicted—
Marin of assisting in the preparation and presentation
of a false tax return and Palivos of conspiracy to ob-
struct justice—though he was acquitted of obstruction of
justice. They appeal their convictions.
The deal involved a complex loan fraud scheme in
which the seller of a problem-plagued restaurant, the
Waterfalls, in Antioch, Illinois, secretly fronted money
2 Nos. 05-4258 & 05-4329
to the buyer to finance the sale. The seller, also a
defendant in this case, was JACPG, Inc., a private
corporation with a small number of shareholders,
including Palivos and his brother George Palivos,1 also
a defendant. The buyer was Peter Bouzanis,2 who had no
financial resources, only limited experience in the
restaurant business, was a felon, and had a lackluster
credit history. Other than that, he seemed perfect.
The mortgage to finance the purchase was obtained
from The Money Store and was partially guaranteed
by the United States Small Business Administration
(SBA). The loan itself was for approximately $1.25
million. Because of misrepresentations made during
the loan application process, The Money Store and the
SBA were not aware that 100 percent of the funds for
the closing came from the seller.
Making the deal go through required a bit of imagina-
tion. To qualify for the loan, Bouzanis presented false
income tax returns to The Money Store. He also com-
pleted a document that allowed the lender to obtain his
federal income tax forms. Because the 1994 tax return
Bouzanis filed with the Internal Revenue Service
showed an adjusted gross income of $8,005, hardly
enough to convince any lender to give him a big loan,
Marin instructed his accountant to prepare an amended
income tax return for Bouzanis showing an income of
$52,000.
1
When we refer to “Palivos” we mean Peter. When necessary, we
will use full names to distinguish between Peter and George.
2
George Palivos and Bouzanis are fugitives believed to be living
in Greece.
Nos. 05-4258 & 05-4329 3
Obviously, Bouzanis had no money for a down pay-
ment so, as we said, the sellers provided it. Bouzanis
was required to come to the closing with over $350,000
for a down payment and evidence of $45,000 in work-
ing capital. To come up with the money, Palivos’s
brother-in-law Dimitrios Bousis went to a bank where he
was a long-time customer and pledged his own accounts
to guarantee a $354,000, 5-day, interest-free bank loan
to Bouzanis. The bank cut a cashier’s check indicating
that it represented the proceeds from a loan. Because
the sellers knew the down payment could not
be encumbered, they asked the bank to void that check
and issue a replacement with no reference to a loan.
Bousis and Palivos also helped Bouzanis convince the
lender he had $45,000 in working capital. Palivos
purchased a $45,000 cashier’s check which Bousis
deposited into his bank account. Bousis then wrote a
$45,000 personal check to Bouzanis, who deposited it in
an account that he had opened that same day for the
new restaurant business.
To explain why so much money changed hands
around the time of the closing, the parties fabricated a
purchase price dispute and manufactured a paper trail.
The paper trail consisted of bogus letters between the
parties discussing the poor condition of the restaurant.
The dispute was then “settled” by a payment after the
closing of $392,500 to Bouzanis. Bouzanis then wrote a
check to Palivos for $25,000 in “Partial Repayment of
Loan,” as stated on the check memo. The proceeds
remaining from the sale were distributed to JACPG
shareholders. Palivos received $75,000. That sum,
along with the $25,000 from Bouzanis, amounted to a
$100,000 gain for Palivos from the fraudulent transfer.
4 Nos. 05-4258 & 05-4329
After Bouzanis purchased the restaurant he immedi-
ately defaulted on the loan. That, in turn, led to a crim-
inal investigation by the SBA Office of Inspector General
and the Federal Bureau of Investigation. The govern-
ment served grand jury document subpoenas on the
subjects of the investigation, including Nicholas Black,
a real estate lawyer who represented JACPG. Black
is central to Palivos’s appeal.
After he was served with the subpoena in 2000, Black
talked with George Palivos, who reminded Black of the
so-called purchase price dispute. George Palivos asked
Black if he had kept notes from the transaction. Black
said that if notes were not in his file, “they would be.”
Black testified at trial that what he meant by that
statement was that he would make up notes.
A few days later, George Palivos showed Black other
letters that had been made up at the time of the sale to
document the phony purchase price dispute. Peter
Palivos joined the discussion and told Black that it
would be “nice” if Black found similar notes in his file.
After Black located his file from the closing, he met
again with Peter and George Palivos. At that time, there
were no notes in Black’s file about the dispute or about
the check from Bouzanis to Peter Palivos. Again Peter
Palivos told Black that it would be “nice” and “helpful”
if there were notes, which would appear as if they
were written at the time of the “dispute” in 1996. Black
said “they would be in the file.” It was important that
the notes be “found” in Black’s file because he had
prepared the paperwork for the deal.
Later, though, Black seemed to get cold feet and
expressed concern about fabricating the notes. Saying
that sometimes doctors involved in malpractice litiga-
tion manufactured notes, Peter Palivos told Black to find
Nos. 05-4258 & 05-4329 5
old paper and an old pen to write the notes and sug-
gested that he rub the paper against something so no
one could tell when the notes were written. Black did as
was suggested and manufactured notes: one about the
purchase price dispute and one about money Bouzanis
refunded to Palivos after the closing. Black personally
delivered the notes, as required by the subpoena, to a
government agent. He also gave Palivos copies of the
letters. Palivos thanked Black and said he appreciated
what he had done.
But the government was not fooled by the notes.
Almost immediately, agents went to Black’s office to
question him. They also submitted the notes to the IRS
Crime Laboratory for analysis. The results of a labora-
tory indentation analysis revealed what was written on
the legal pad paper directly above the notes—that is,
paper that presumably would have been used before
the notes were created. The indentations showed a
reference to July 1997, confirming the government’s
doubts about Black’s statement that he wrote the notes
in April 1996.
The government arranged a meeting with Black’s
attorney. In the meeting, the attorney was told that the
government had forensic evidence showing that the
notes were written long after the closing. Black was not
present.
Soon after that meeting Black changed lawyers, and
his new attorney informed the government that Black
wanted to cooperate with the investigation. During
several meetings with the government, Black explained
what he knew about the fraud and the subsequent
obstruction of justice. He also testified before the
grand jury. Black was charged for his involvement
6 Nos. 05-4258 & 05-4329
with the loan fraud and the subsequent obstruction of
justice. He ultimately pled guilty.
We turn our attention back to Palivos. In the district
court Palivos filed at least six post-trial motions for
relief from his conviction. All were denied. He now raises
several, somewhat related, issues on appeal.
First, he contends that he was convicted based only on
Black’s testimony, which he claims was false and was
given because Black was manipulated into framing him.
We review the denial of his request for a new trial for
an abuse of discretion, United States v. Van Eyl, 468
F.3d 428 (7th Cir. 2006), and reject it.
Palivos says that the government misled Black,
causing him to plead guilty and testify falsely. The
alleged manipulation involves the notes in Black’s file
regarding the purchase price dispute. As we said, at an
interview with Black’s lawyer, the government said
that there was forensic evidence showing that the notes
were written well after the closing. Palivos argues that
the government said the evidence was ink analysis,
which, in fact, did not exist. The government denies
ever saying there was ink analysis; rather, the evidence
was the indentation analysis showing a 1997 date had
been written on the sheet of paper above the one on
which the notes were written, making it unlikely that
the notes were written in 1996—at the time the deal
was going down.
There are problems with Palivos’s argument. Black’s
attorney at the time talked with the government, but
Black himself was not involved in the conversation.
There is no evidence that the government misled Black’s
attorney into thinking there was ink analysis, rather
than simply indentation analysis. Furthermore, even
Nos. 05-4258 & 05-4329 7
if the government engaged in artifice, Palivos would
still not have a claim: “Artifice and stratagem may be
employed to catch those engaged in criminal enter-
prises.” United States v. Swiatek, 819 F.2d 721, 725 (7th
Cir. 1987), quoting Sorrells v. United States, 287 U.S.
435, 441 (1932).
More importantly, a new trial is ordered, on the basis
of the use of perjured testimony, only if a defendant
establishes that (1) there was perjured testimony, (2) of
which the government knew or should have known, and
(3) that testimony could have affected the outcome of the
trial. United States v. Burke, 425 F.3d 400 (7th Cir.
2005). Palivos has not shown that Black’s testimony
is, in fact, false. Black has always maintained that he
testified truthfully at trial. The jury was entitled to
believe him.
There was other evidence as well. There was testimony
from Dean Kalamantianos, who practiced law
with Black and attended the real estate closing.
Kalamantianos testified that Black told him about the
bogus notes that he prepared at the request of Palivos.
And although there was no ink analysis, there was
forensic evidence in the form of indentation evidence.
Palivos has not shown that the district court abused its
discretion by denying his request for a new trial based
on this claim.
Next, we consider Palivos’s argument that he should
have a new trial, apparently because 5 days after trial
he found “newly discovered evidence,” which he says also
reveals a government violation of Brady v. Maryland,
373 U.S. 83 (1963), and his confrontation and due
process rights. We say “apparently” because the argu-
ment, presented in an almost stream-of-consciousness
manner, is rather difficult to pin down.
8 Nos. 05-4258 & 05-4329
To obtain a new trial under Federal Rule of Criminal
Procedure 33, Palivos must show that the new evidence
(1) was discovered after trial; (2) could not have been
discovered sooner with due diligence; (3) was material
in the sense that it bore directly on guilt or innocence
and was simply impeaching or cumulative; and (4) if
presented at a new trial would probably result in
acquittal. United States v. Hodges, 315 F.3d 794, 801
(7th Cir. 2003). For a Brady violation to exist, entitling
a defendant to a new trial, he must establish (1) that the
prosecution suppressed evidence; (2) that the evidence
was favorable to the defendant; and (3) that it is mate-
rial to an issue at trial. Evidence is material if there is
a “reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding
would have been different.” United States v. Bagley, 473
U.S. 667, 682 (1985); see also United States v. Irorere,
228 F.3d 816 (7th Cir. 2000). Impeachment evidence
falls within the Brady rule. Giglio v. United States, 405
U.S. 150 (1972). We review for abuse of discretion the
denial of a motion for new trial based upon newly
discovered evidence claimed to violate Brady. See United
States v. Asher, 178 F.3d 486 (7th Cir. 1999); United
States v. Silva, 71 F.3d 667 (7th Cir. 1995).
Palivos contends that an unsigned letter, dated
February 13, 2003, apparently written by attorney Elliot
Samuels to Black, is Brady material. It may be that he
also contends two or three other letters, including a
September 19, 2002, letter from Samuels to Aotirios
Bregiannos in Athens, Greece, also are Brady material.
The February 13 letter states in part:
Regarding these documents, it was represented by
certain government agents that scientific, forensic
Nos. 05-4258 & 05-4329 9
tests had conclusively established that the docu-
ments were recently prepared and added to your
file and, therefore, were not genuine. We now know
that the government’s motive for this deception (as
it later proved to be) was to induce you to cooperate
against certain individuals who had played various
roles in the Waterfalls deal. . . . Fortunately for us,
some of the indicted defendants entered not guilty
pleas, which required the government to reveal and
disclose the results of all scientific reports, otherwise
these documents never would have seen the light
of day. Contrary to the representations made, the
forensic tests performed on the documents clearly
do not substantiate and, in fact, contradict the
assertions made by the government which induced
you to cooperate.
The September 19 letter to Bregiannos states that
“certain misrepresentations have been made to us by
federal agents.”
Palivos’s theory is that the letters show that the
government misrepresented the forensic evidence
regarding the notes in Black’s file. He claims Black
would not have entered a guilty plea except for those
misrepresentations. And Palivos contends that after
finding out he had been duped, Black considered with-
drawing his guilty plea based on prosecutorial miscon-
duct. Ultimately, realizing he might face more serious
consequences by withdrawing his plea, Black changed
his mind. The upshot of Palivos’s argument is that the
Samuels letters show Black was misled, and if he had
not been misled, he would not have ended up testifying
against Palivos.
That is a leap. And the argument lacks factual sup-
port. We are not told the basis for Samuels’ belief that
10 Nos. 05-4258 & 05-4329
the government misrepresented the forensic evidence. In
fact, Samuels stated in an affidavit that his letter was
“bogus.” Additionally, we find it curious that even if
what Samuels’ letter says is true, it does not show any
real motive for Black to lie. Under Palivos’s view of the
facts, Black was the victim. Finally, there is no reason-
able probability that a letter, termed bogus by the
writer, which claims the government duped its own
witness, would have changed the outcome of the pro-
ceedings. We also find that it was not an abuse of
discretion for the district judge to decline to hold an
evidentiary hearing on these remarkable claims.
Palivos also claims that he was denied a fair trial
because the prosecutors misrepresented the evidence,
violated the trial court’s order, and made improper
arguments to the jury. We review for an abuse of
discretion the denial of a motion for a new trial based on
prosecutorial misconduct. United States v. Andreas, 216
F.3d 645 (7th Cir. 2000). We must determine whether
the prosecutor’s remarks “so infected the trial that he
was denied due process.” United States v. Emenogha, 1
F.3d 473, 481 (7th Cir. 1993); see also United States v.
Xiong, 262 F.3d 672 (7th Cir. 2001).
Once more, we return to Black’s testimony. Palivos
says that an assistant United States attorney, William
Hogan, stated to the court that the defense was not in
for any surprises at trial. But when Black took the
stand, he told the jury a story about two pads of paper
and two pens (with which he wrote the backdated notes
for his file) when, prior to that time, he had said there
was one pen and a pad of paper. We are not overly
impressed about the surprise value of testimony re-
garding two pads of paper, rather than one. A surprise
would be if Black previously maintained that he did not
Nos. 05-4258 & 05-4329 11
write the notes and then suddenly testified that he did.
Plus, the discrepancy is gift-wrapped cross-examination
material.
Palivos also contends that AUSA Hogan failed to give
the defense notice that the testimony of JACPG’s
accountant, Jerrold Weinstein, would be different at
trial from that given before the grand jury. We do not
quite follow the argument. Prior to Weinstein’s trial
testimony, Hogan advised the court that Weinstein
would testify that Palivos was a shareholder in JACPG,
whereas in front of the grand jury he said he had no
knowledge whether Palivos was a shareholder in
JACPG. That would seem to provide notice of the
change in the testimony.
Palivos also argued that any testimony from Weinstein
about Palivos’s connection with JACPG would be hear-
say because the basis of his knowledge was a conver-
sation in which John or Chris Katris (two of the JACPG
shareholders) told him that the “P” in JACPG stood
for Peter. A lengthy conference was held outside the
presence of the jury as to whether this testimony was
inadmissible hearsay. The court ruled for the defense as
to the “P” issue but went on to say:
I believe that in order for this witness to give appro-
priate evidence, he works with the principal of the
corporation. And so there as long as the question is
focused with his work, the testimony—there is going
to be some hearsay admissible.
The judge likened Weinstein’s probable testimony with
that of an expert witness, which prompted the defense
to jump on another argument: that they had not received
proper notice of expert testimony. The judge then
arrived at the conclusion that Weinstein was a lay
12 Nos. 05-4258 & 05-4329
witness with special expertise, and in order for him to
apply his expertise in his job, he had to ask questions of
the principals as to how corporation money should be
distributed. With that, testimony recommenced.
During his testimony, Weinstein was not asked about
the “P” in JACPG but at some point was asked how the
money from the sale was distributed. He said, two
shareholders each received $150,000 and two (George
and Peter Palivos) each received $75,000. No simulta-
neous objection was lodged to the question which
resulted in these answers, but after direct examination,
defense counsel contended that it was hearsay and
should be stricken. After some wrangling, the judge
disagreed.
Palivos argues that all of this amounted to prosecuto-
rial misconduct; that is, that in questioning Weinstein,
AUSA Hogan simply disregarded the court’s ruling. That
argument cannot be sustained. The court’s ruling as to
what was excluded was very specific and was complied
with. But there was some confusion as to what would
be allowed and why. It cannot be said that the ques-
tions which were asked were in clear violation of the
judge’s ruling. And no simultaneous objection was
made to the testimony. And even with all that said, it is
rather hard to see why an accountant cannot testify
about the people to whom funds were distributed and
why.
Other claimed misconduct involves AUSA Hogan’s
reference to the defense case as weak and their argu-
ments misleading. It is doubtful that any remarks called
to our attention were improper, but certainly if they
were, our review of the record shows that they did not
infect the trial with unfairness.
Nos. 05-4258 & 05-4329 13
Palivos’s final claim is that the judge failed to instruct
the jury on the elements of the offense of conspiracy to
obstruct justice. This claim fails as well. When we
review jury instructions for alleged errors of law, we
reverse only if the instructions, “viewed as a whole,
misguide the jury to the litigant’s prejudice.” United
States v. Souffront, 338 F.3d 809, 834 (7th Cir. 2003).
We note that as long as “ ‘the instructions treat the
issues fairly and accurately,’ they will not be disturbed
on appeal.” Souffront, 338 F.3d at 834, quoting United
States v. Thibodeaux, 758 F.2d 199, 202 (7th Cir. 1985).
Furthermore, Palivos did not object to the instructions
in the trial court, nor did he propose alternate instruc-
tions.
The instruction was as follows:
A conspiracy is an agreement between two or more
persons to accomplish an unlawful purpose. Peter
Palivos is charged with conspiracy in Count 6.
To sustain the charge of conspiracy, the govern-
ment must prove the following: First, that the
conspiracy as charged existed and, second, that each
defendant knowingly became a member of the
charged conspiracy with an intention to further the
conspiracy. And, third, that an overt act was com-
mitted by at least one conspirator in furtherance of
the charged conspiracy.
If you find from your consideration of all the
evidence that each of these propositions has been
proved beyond a reasonable doubt, then you should
find the defendant guilty of the charged conspiracy.
If, on the other hand, you find from your consider-
ation of all the evidence that any of these proposi-
tions has not been proved beyond a reasonable
14 Nos. 05-4258 & 05-4329
doubt, then you should find the defendant not guilty
of the charge of conspiracy.
A conspiracy may be established even if its pur-
pose was not accomplished. It is not necessary that
all the overt acts charged in the indictment be
proved and the overt act proved may itself be a
lawful act. To be a member of the conspiracy, the
defendant need not join at the beginning or know all
the other members or the means by which its pur-
pose was to be accomplished. The government must
prove beyond a reasonable doubt that the defendant
was aware of the common purpose and was a willing
participant.
To sustain the charge of obstruction of justice the
government must prove the following propositions:
First, that defendant Peter Palivos influenced,
obstructed, impeded or endeavored to influence,
obstruct or impede the due administration of justice.
Second, that defendant Peter Palivos acted know-
ingly. And, third, that defendant Peter Palivos’ acts
were done corruptly; that is, by producing and
causing the production of materially false and
misleading documents in response to the grand jury
subpoena served upon Nicholas Black with the
purpose of wrongfully impeding the due administra-
tion of justice.
If you find from your consideration of all the
evidence that each of these propositions has been
proved beyond a reasonable doubt, then you should
find the defendant guilty. If, on the other hand, you
find from your consideration of all of the evidence
that any one of these propositions has not been
proved beyond a reasonable doubt, then you should
find the defendant not guilty. The word endeavor
Nos. 05-4258 & 05-4329 15
described any effort or act to influence, obstruct or
impede the due administration of justice. The en-
deavor need not be successful but it must have at
least a reasonable tendency to influence, obstruct or
impede the due administration of justice.
While the relationship between the conspiracy and the
obstruction of justice could have been stated a bit more
clearly, we find that, viewed as a whole, the instruc-
tions fairly and accurately informed the jury of the
elements of the crime.
We turn next to Mr. Marin. His basic contention is not
that he is blameless, but rather that he was charged
with the wrong crime. We agree.
Marin was charged with a violation of 26 U.S.C.
§ 7206(2). That section requires that a person willfully
aid or assist in “the preparation or presentation
under . . . the internal revenue laws, of a return . . .
which is fraudulent . . . as to any material matter . . . .”
There seems to be no dispute that to be a violation of
this section the return must have been filed with the
Internal Revenue Service. The fifth superseding Indict-
ment in this case says that Marin aided in the prepara-
tion and presentation to the IRS an
individual income tax return (Form 1040) on behalf
of Peter Bouzanis for the calendar year 1994, which
return defendant LOUIS MARIN did not believe
was true and correct as to every material matter,
in that at line 12 of the Form 1040, it falsely stated
that Peter Bouzanis earned business income of
$52,000, when in fact, as defendant LOUIS MARIN
well knew, Peter Bouzanis did not earn such busi-
ness income[.]
16 Nos. 05-4258 & 05-4329
The problem is that the return for which there is some
evidence of fraud is not the return which was filed with
the IRS and cited in the indictment.
For the 1994 tax year, Bouzanis filed (on February 16,
1995) an individual income tax form 1040, showing
wages, etc. of $11,005, as shown on a W-2 form, and
adjusted gross income of $8,005. That paltry income, as
we previously observed, would hardly inspire any
lender to loan him $1.25 million. So Marin enters the
picture. Marin said in his statement to Thomas Heinzer,
a Special Agent with the SBA, Office of Inspector
General, that he requested his friend, an accountant, to
prepare a “bogus” tax return for Bouzanis and that the
accountant insisted that the form be filed with the IRS.
The form, Marin continued, was used “to reflect a more
favorable income history” for Bouzanis. The point of the
whole enterprise, of course, was to obtain the loan.
So another 1040 was filed with the IRS. It showed
business income (line 12) of $52,000. Attached to this
form was a Schedule C—Profit or Loss From Business
for sole proprietorships, reflecting the $52,000. This
is the return cited in the indictment. But there is little,
if any, evidence in the record that this return was
fraudulent.
Also, it is not the return which was given to The
Money Tree. That was yet another form—a Form 1040A
individual tax return. It showed wages, salaries, etc. of
$52,000. There is, of course, no W-2 attached to the
1040A because there was no such salary. The salary
was, in Marin’s word, “bogus.” This is the return the
lenders received, but it is undisputed that this return
was not filed with the IRS.
Special Agent Heinzer testified that the only return
he was “concerned about” was the one turned over to
Nos. 05-4258 & 05-4329 17
The Money Store—the 1040A. Marin’s statement estab-
lishes that the 1040A was false and that it was used in
an attempt to obtain a loan. But, to repeat, this return
was not filed with the IRS.
As to the form which was filed—the 1040 with the
Schedule C attached—the evidence falls short of show-
ing beyond a reasonable doubt that it was false. Proba-
bly it was, but that is not good enough. In testimony
before the grand jury which was read during the trial,
Heinzer acknowledged that no one checked to see
whether Bouzanis and Company had made $52,000. It is
true that at trial he also testified that there is no
Bouzanis and Company and that a subpoena was sent to
the Illinois Secretary of State for records regarding that
company or corporation and none were found. Cross-
examination showed, however, that Heinzer did not
know whether Bouzanis was operating an unincorpo-
rated enterprise. Or, we might add, an illegal enterprise.
In short, we conclude that beyond a reasonable doubt
the 1040A was patently false and it was used to defraud
The Money Store and the SBA. Also, beyond a reason-
able doubt, that form was not filed with the IRS. The
1040 with the Schedule C was filed, but it cannot be
said that it was false beyond a reasonable doubt. Marin
aided in the commission of the fraud in this case, but
he did not violate § 7206(2). Accordingly, his conviction
must be vacated.
The judgment of conviction as to Peter Palivos is
AFFIRMED; the judgment of conviction against Louis
Marin is VACATED.
18 Nos. 05-4258 & 05-4329
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—4-10-07